Citation Nr: 0819155
Decision Date: 06/10/08 Archive Date: 06/18/08
DOCKET NO. 05-27 076 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUE
Entitlement to service connection for sinusitis.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The veteran had active service from July 1984 to July 2004.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2004 rating determination
of the Department of Veterans Affairs (VA) Regional Office
(RO) located in Togus, Maine.
In November 2006, the veteran testified at a video conference
hearing before the undersigned. A transcript of that hearing
is associated with the claims file.
This matter was previously before the Board in July 2007, at
which time it was remanded for further development.
FINDING OF FACT
Resolving reasonable doubt in favor of the veteran, his
current sinusitis had its onset in service.
CONCLUSION OF LAW
Sinusitis was incurred in service. 38 U.S.C.A. §§ 1110, 1131
(West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations impose obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§
3.102, 3.156(a), 3.159, 3.326(a) (2007).
The VCAA is not applicable where further assistance would not
aid the appellant in substantiating his claim. Wensch v.
Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. §
5103A(a)(2) (Secretary not required to provide assistance "if
no reasonable possibility exists that such assistance would
aid in substantiating the claim"); see also VAOPGCPREC 5-
2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and
duty to assist provisions of the VCAA do not apply to claims
that could not be substantiated through such notice and
assistance). In view of the Board's favorable decision in
this appeal, further assistance is unnecessary to aid the
veteran in substantiating his claim.
Pertinent Law and Regulations
Service connection will be granted if it is shown that the
veteran suffers from disability resulting from an injury
suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or disease
contracted in line of duty, in the active military, naval, or
air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004);
see also Caluza v. Brown, 7 Vet. App. 498 (1995).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
It is the defined and consistently applied policy of VA to
administer the law under a broad interpretation, consistent,
however, with the facts shown in every case. When, after
careful consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. By reasonable doubt is
meant one which exists because of an approximate balance of
positive and negative evidence which does not satisfactorily
prove or disprove the claim. It is a substantial doubt and
one within the range of probability as distinguished from
pure speculation or remote possibility. It is not a means of
reconciling actual conflict or a contradiction in the
evidence; the claimant is required to submit evidence
sufficient to justify a belief in a fair and impartial mind
that the claim is well grounded. Mere suspicion or doubt as
to the truth of any statements submitted, as distinguished
from impeachment or contradiction by evidence or known facts,
is not justifiable basis for denying the application of the
reasonable doubt doctrine if the entire, complete record
otherwise warrants invoking this doctrine. The reasonable
doubt doctrine is also applicable even in the absence of
official records, particularly if the basic incident
allegedly arose under combat, or similarly strenuous
conditions, and is consistent with the probable results of
such known hardships. 38 C.F.R. § 3.102.
Analysis
A review of the veteran's service treatment records
demonstrates that he was diagnosed as having chronic
sinusitis in April 1992. In November 1994, the veteran was
diagnosed as having an upper respiratory disorder with
sinusitis.
On his March 1995 report of medical history, the veteran
checked the "yes" box when asked if he had or had ever had
sinusitis.
In December 1995, the veteran was diagnosed as having acute
sinusitis. Another diagnosis of sinusitis was reported in
December 1997.
At the time of a June 2004 VA examination, the veteran
complained of nasal congestion. He felt that his symptoms
were much worse in the winter when things were dry. He did
not use oxygen and did not stay on medication to relieve his
respiratory symptoms. He had no dyspnea on exertion. There
was no speech impairment. Physical examination performed at
that time revealed mild nasal obstruction, 40 percent on the
right and 10 percent on the left. There was no identifiable
or definitive sinus that was involved. X-rays of the sinuses
were negative. A diagnosis of severe sinus infections while
on active duty, not presently on examination or x-ray, was
rendered.
In his November 2004 notice of disagreement, the veteran
indicated that he had suffered from sinusitis for many years.
He had relief in the summer months, which also happened to be
when he had his last rating examination. The veteran
reported that he had been on medication much of the year and
used over-the-counter medication.
Treatment records obtained in conjunction with the veteran's
claim reveal that he was diagnosed as having chronic
sinusitis in January 2005.
At the time of a July 2005 VA examination, the veteran
reported being treated for sinusitis in the service. Since
then he had had no other episodes of sinusitis requiring
antibiotics. He did have some seasonal nasal congestion
which seemed to be worse in the winter months. At nighttime,
he was having some difficulty breathing through the nasal
passage which was dependent on which side he was lying on.
He had no purulent discharge, fever, or chills. There was no
impairment of speech or hearing. He sometimes had a headache
with nasal congestion. The veteran had no known allergies,
but when he is haying, as he was at this time of year, the
dust and hay chaff would increase his congestion. He used a
nasal spray which was helpful. He did not use any oral
decongestants. He had had no actual allergic attacks. He
had never had surgery on his sinuses and had not used oxygen.
He had also not had any periods of incapacitation requiring
bedrest or hospitalization.
Examination of the sinuses revealed slight tenderness to
palpation and percussion over the maxillary and frontal
sinuses. Examination of the nares revealed no evidence of
vasomotor rhinitis. There was no swelling or discoloration
and no bleeding. There was also no obstruction of either
nostril. A diagnosis of sinus congestion, rhinitis, was
rendered.
At his November 2006 hearing, the veteran reported having
received medication for his sinus problems while in service.
He indicated that he was treated many times in service. The
veteran indicated that he was currently not receiving any
treatment.
At the time of a September 2007 VA examination, the veteran
reported having received anti-biotics for his sinus problems
while in service. The examiner indicated that he did not
have any records of previous sinus x-rays of the veteran.
While there was no specific problem with the nose, the
examiner indicated that he could not see into the sinuses.
He noted that the veteran had a history of rhinitis which was
probably allergic in origin. He observed that the veteran
reported that his rhinitis was usually worse in the late
summer and early fall.
The veteran was afforded an additional VA examination in
November 2007. The examiner stated that he could not find x-
ray evidence of sinusitis while the veteran was on active
duty. He noted that the recent film showed very minimal
evidence of sinusitis involving the anterior ethmoid,
bilaterally, plus two small mucoceles or polyps in the
maxillary sinuses, which were very common and had no clinical
significance. The examiner indicated that as far as the
sinuses went, there were minimal findings on the films.
The examiner stated that whatever sinusitis the veteran had
while in the service may have lingered and this would be the
reason for the slight opacification of the ethmoid sinuses,
but this was not of any major significance.
The examiner opined that it was just as likely that the
sinusitis that occurred while in the service had lingering
changes in the sinuses, but he was not sure it was enough of
a problem to be ratable.
For a veteran to prevail in his claim it must only be
demonstrated that there is an approximate balance of positive
and negative evidence. In other words, the preponderance of
the evidence must be against the claim for benefits to be
denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990).
The Board notes that the veteran's service medical records
contain several findings of sinusitis. Moreover, while
several VA examiners have questioned whether the veteran
currently has sinusitis, the most recent VA examiner in
November 2007 indicated that the x-rays revealed minimal
sinusitis. He also noted that it was as likely as not that
the veteran's inservice sinusitis had lingering changes and
this was the reason for the slight opacification of the
ethmoid sinuses. Based upon the inservice findings, the
findings at the time of the most recent VA examination, and
the opinion rendered by the November 2007 VA examiner,
reasonable doubt must be resolved in favor of the veteran and
service connection is warranted for sinusitis.
ORDER
Service connection for sinusitis is granted.
____________________________________________
JOHN Z. JONES
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs